1、Last updated June 2013SERIES A PREFERRED STOCK PURCHASE AGREEMENTLast updated June 2013Preliminary NoteThe Stock Purchase Agreement sets forth the basic terms of the purchase and sale of the preferred stock to the investors (such as the purchase price, closing date, conditions to closing) and identi
2、fies the other financing documents. Generally this agreement does not set forth either (1) the characteristics of the stock being sold (which are defined in the Certificate of Incorporation) or (2) the relationship among the parties after the closing, such as registration rights, rights of first ref
3、usal and co-sale, voting arrangements (these matters often implicate other persons than just the Company and the investors in this round of financing, and are usually embodied in separate agreements to which those others persons are parties, or in some cases by the Certificate of Incorporation). The
4、 main items of negotiation in the Stock Purchase Agreement are therefore the price and number of shares being sold, and the representations and warranties that the Company, and sometimes the Founders as well, must make to the investors.Last updated June 2013 iTABLE OF CONTENTSNote to Drafter: Sectio
5、n headings have been formatted to automatically populate the Table of Contents. However, when editing this document for your own use, the page numbers may change. In order to reflect the correct page numbers in the Table of Contents, you must “update page numbers” to the Table of Contents by (1) rig
6、ht-clicking anywhere in the Table of Contents, and (2) choose “update field,” then “update page numbers only.” If you add or delete section headings, follow step (1) and (2) above and choose “update entire table.”Page1. Purchase and Sale of Preferred Stock 11.1 Sale and Issuance of Series A Preferre
7、d Stock 11.2 Closing; Delivery.11.3 Sale of Additional Shares of Preferred Stock 21.4 Use of Proceeds.31.5 Defined Terms Used in this Agreement.32. Representations and Warranties of the Company52.1 Organization, Good Standing, Corporate Power and Qualification 62.2 Capitalization .62.3 Subsidiaries8
8、2.4 Authorization .82.5 Valid Issuance of Shares92.6 Governmental Consents and Filings 92.7 Litigation92.8 Intellectual Property.102.9 Compliance with Other Instruments 122.10 Agreements; Actions122.11 Certain Transactions 132.12 Rights of Registration and Voting Rights142.13 Property142.14 Financia
9、l Statements 142.15 Changes152.16 Employee Matters 162.17 Tax Returns and Payments.182.18 Insurance182.19 Employee Agreements.182.20 Permits .192.21 Corporate Documents 192.22 83(b) Elections 192.23 Real Property Holding Corporation 192.24 Environmental and Safety Laws 192.25 Qualified Small Busines
10、s Stock 202.26 Disclosure 212.27 Small Business Concern212.28 Foreign Corrupt Practices Act.21TABLE OF CONTENTS(continued)PageLast updated June 2013 ii2.29 Data Privacy 223. Representations and Warranties of the Purchasers 223.1 Authorization .223.2 Purchase Entirely for Own Account 233.3 Disclosure
11、 of Information233.4 Restricted Securities.233.5 No Public Market.243.6 Legends243.7 Accredited Investor243.8 Foreign Investors .243.9 No General Solicitation253.10 Exculpation Among Purchasers.253.11 Residence .253.12 Consent to Promissory Note Conversion and Termination.254. Conditions to the Purc
12、hasers Obligations at Closing .264.1 Representations and Warranties.264.2 Performance .264.3 Compliance Certificate 264.4 Qualifications.264.5 Opinion of Company Counsel .274.6 Board of Directors274.7 Indemnification Agreement .274.8 Investors Rights Agreement .274.9 Right of First Refusal and Co-Sa
13、le Agreement .274.10 Voting Agreement274.11 Restated Certificate274.12 Secretarys Certificate274.13 Proceedings and Documents274.14 Minimum Number of Shares at Initial Closing284.15 Management Rights .284.16 SBA Matters284.17 Preemptive Rights .285. Conditions of the Companys Obligations at Closing
14、.285.1 Representations and Warranties.285.2 Performance .285.3 Qualifications.285.4 Investors Rights Agreement .285.5 Right of First Refusal and Co-Sale Agreement .285.6 Voting Agreement295.7 Minimum Number of Shares at Initial Closing.296. Miscellaneous 29TABLE OF CONTENTS(continued)PageLast update
15、d June 2013 iii6.1 Survival of Warranties .296.2 Successors and Assigns296.3 Governing Law 296.4 Counterparts.296.5 Titles and Subtitles.296.6 Notices .306.7 No Finders Fees306.8 Fees and Expenses .306.9 Attorneys Fees .306.10 Amendments and Waivers .306.11 Severability 316.12 Delays or Omissions 31
16、6.13 Entire Agreement.316.14 Corporate Securities Law316.15 Dispute Resolution.326.16 No Commitment for Additional Financing .336.17 Waiver of Conflicts .33Exhibit 1 - SCHEDULE OF PURCHASERSExhibit 2 - FORM OF AMENDED AND RESTATEDCERTIFICATE OF INCORPORATIONExhibit 3 - DISCLOSURE SCHEDULEExhibit 4 -
17、 FORM OF INDEMNIFICATION AGREEMENTExhibit 5 - FORM OF INVESTORS RIGHTS AGREEMENTExhibit 6 - FORM OF MANAGEMENT RIGHTS LETTERExhibit 7 - FORM OF RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENTExhibit 8 - FORM OF VOTING AGREEMENTExhibit 9 - FORM OF LEGAL OPINION OF COMPANY COUNSELExhibit 10 - MILESTONE E
18、VENTSADDENDUM TO STOCK PURCHASE AGREEMENT: SAMPLE FOUNDER REPRESENTATIONS AND WARRANTIESLast updated June 2013SERIES A PREFERRED STOCK PURCHASE AGREEMENTTHIS SERIES A PREFERRED STOCK PURCHASE AGREEMENT (this “Agreement”), is made as of the _ day of _, 20_ by and among _, a Delaware corporation (the
19、“Company”), the investors listed on Exhibit 1 attached to this Agreement (each a “Purchaser” and together the “Purchasers”) and the persons listed as “Founders” on the signature pages to this Agreement (each a “Founder” and together the “Founders”).The parties hereby agree as follows:1. Purchase and
20、 Sale of Preferred Stock.1.1 Sale and Issuance of Series A Preferred Stock. (a) The Company shall adopt and file with the Secretary of State of the State of Delaware on or before the Initial Closing1 (as defined below) the Amended and Restated Certificate of Incorporation in the form of Exhibit 2 at
21、tached to this Agreement (the “Restated Certificate”).2(b) Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at the Closing and the Company agrees to sell and issue to each Purchaser at the Closing that number of shares of Series A Preferred Stock, $ _ par valu
22、e per share (the “Series A Preferred Stock”), set forth opposite each Purchasers name on Exhibit 1, at a purchase price of $_ per share. The shares of Series A Preferred Stock issued to the Purchasers pursuant to this Agreement (including any shares issued at the Initial Closing and any Milestone Sh
23、ares or Additional Shares, as defined below) shall be referred to in this Agreement as the “Shares.”1.2 Closing; Delivery.(a) The initial purchase and sale of the Shares shall take place remotely via the exchange of documents and signatures, at _ _.m., on _ _, 20_, or at such other time and place as
24、 the Company and the Purchasers mutually agree upon, orally or in writing (which time and place are designated as the “Initial Closing”).3 In the event there is more than one closing, the term “Closing” shall apply to each such closing unless otherwise specified.(b) At each Closing, the Company shal
25、l deliver to each Purchaser a certificate representing the Shares being purchased by such Purchaser at such Closing against 1 If only one closing is contemplated, references to “Initial Closing,” “each Closing,” “such Closing” etc. should be modified.2 Sometimes only a Certificate of Amendment is re
26、quired.3 If the Agreement is signed prior to the Closing, this provision gives the parties flexibility to change the closing date as contingencies arise. As a practical matter, however, the Agreement is usually signed on the date of the Closing. This means that, until the Closing, everyone has an op
27、portunity to back out of the deal.Last updated June 2013 2payment of the purchase price therefor by check payable to the Company, by wire transfer to a bank account designated by the Company, by cancellation or conversion of indebtedness of the Company to Purchaser, including interest4, or by any co
28、mbination of such methods.1.3 Sale of Additional Shares of Preferred Stock.(a) After the Initial Closing, the Company may sell, on the same terms and conditions as those contained in this Agreement5, up to _ additional shares (subject to appropriate adjustment in the event of any stock dividend, sto
29、ck split, combination or similar recapitalization affecting such shares) of Series A Preferred Stock (the “Additional Shares”), to one or more purchasers (the “Additional Purchasers”) reasonably acceptable to Purchasers holding a specify percentage of the then outstanding Shares6, provided that (i)
30、such subsequent sale is consummated prior to 90 days after the Initial Closing (ii) each Additional Purchaser shall become a party to the Transaction Agreements (as defined below) (other than the Management Rights Letter), by executing and delivering a counterpart signature page to each of the Trans
31、action Agreements; and (iii) _, counsel for the Company, provides an opinion dated as of the date of such Closing that the offer, issuance, sale and delivery of the Additional Shares to the Additional Purchasers do not require registration under the Securities Act of 1933, as amended, or applicable
32、state securities laws. Exhibit 1 to this Agreement shall be updated to reflect the number of Additional Shares purchased at each such Closing and the parties purchasing such Additional Shares.(b) After the Initial Closing, the Company shall sell, and the Purchasers shall purchase, on the same terms
33、and conditions as those contained in this Agreement, up to _ additional shares of Series A Preferred Stock (the “Milestone Shares”), pro rata in accordance with the number of Shares being purchased by each such Purchaser at all prior Closings, on the certification by the Board Purchasers that the ev
34、ents specified in Exhibit 10 attached to this Agreement have occurred (the “Milestone Events”). The date of the purchase and sale of the Milestone Shares are referred to in this Agreement as the “Milestone Closing.”74 If some or all of the Purchasers will be converting previously issued notes to Sha
35、res, consider paying the interest in cash, if the terms of the notes permit this, to avoid last-minute recomputations if the closing is delayed. Note that cancellation of interest in return for stock may be a taxable event in the amount of the interest cancelled. Accordingly, some of the Purchasers
36、may require payment of interest in cash to avoid imputation of income without the corresponding payment of cash to pay the tax.5 The Company will often try to negotiate a “cushion” in the negotiated limit of the number of preferred shares in order to permit it to issue additional shares of preferred
37、 stock in transactions outside the financing, e.g., warrants for preferred stock issued in connection with an equipment financing. The language “on the same terms and conditions as those contained in this Agreement” is flexible enough to permit this. If the investors want to limit the number of pref
38、erred shares to be issued to those preferred shares issued in the financing, the language “pursuant to this Agreement” should be substituted.6 The Company may want to limit this approval right to the larger Purchasers. As an alternative, the Agreement may specify that Additional Purchasers must be a
39、pproved by the Board of Directors, including the directors elected by the Series A Preferred Stockholders.7 Consider whether the obligations of each Purchaser at a Milestone Closing are conditioned on (i) the representations and warranties remaining true (or materially so) as of such Milestone Closi
40、ng, (ii) each other Purchaser purchasing shares at the Milestone Closing (i.e., if one Purchaser breaches then no others are obligated), and (iii) any other conditions. In a tranched milestone funding, investors should confirm with their accountants prior Last updated June 2013 31.4 Use of Proceeds.
41、 In accordance with the directions of the Companys Board of Directors, as it shall be constituted in accordance with the Voting Agreement, the Company will use the proceeds from the sale of the Shares for product development and other general corporate purposes.1.5 Defined Terms Used in this Agreeme
42、nt. In addition to the terms defined above, the following terms used in this Agreement shall be construed to have the meanings set forth or referenced below.(a) “Affiliate” means, with respect to any specified Person, any other Person who, directly or indirectly, controls, is controlled by, or is un
43、der common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the same management
44、company with, such Person.(b) “Code” means the Internal Revenue Code of 1986, as amended.(c) “Company Intellectual Property” means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask
45、 works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in, to and under any of the foregoing, and any and all such cases that are owned or used by as are n
46、ecessary to the Company in the conduct of the Companys business as now conducted and as presently proposed to be conducted.(d) “Indemnification Agreement” means the agreement between the Company and the director and Purchaser Affiliates8 designated by any Purchaser entitled to designate a member of
47、the Board of Directors pursuant to the Voting Agreement, dated as of the date of the Initial Closing, in the form of Exhibit 4 attached to this Agreement.(e) “Investors Rights Agreement” means the agreement among the Company and the Purchasers9 and certain other stockholders of the Company dated as
48、of the date of the Initial Closing, in the form of Exhibit 5 attached to this Agreement.(f) “Key Employee” means any executive-level employee (including division director and vice president-level positions) as well as any employee or consultant who _(continued)to the first closing that the initial a
49、nd later tranches will not be treated as separate instruments for purposes of ASC 480 based on the specific structure of the transaction.8 See Model Indemnification Agreement for discussion of the issue of expanding coverage to include not just VC designee director, but also the fund(s) making the investment.9 In Series A Preferred Stock financings, the Investors Rights Agreement will normally be signed by al
